This article has been written by Rohan Patel, from Symbiosis Law School, NOIDA.
Sabyasachi Chatterjee is an Advocate practicing at the High Court of Calcutta. He has graduated from M.S. Ramaiah College of Law, Bangalore and thereafter joined NUJS, Kolkata for LL.M. degree. He is enrolled as an Advocate under the Bar Council of West Bengal and practices mostly at Calcutta High Court, Tribunals, District and Session Court. He holds experience in versatile areas of law namely constitutional, civil, and criminal matters.
Ramnauj Mukherji is an alumnus of the National University of Judicial Sciences, Kolkata. He is currently the CEO of LawSikho and the co-founder of iPleaders. His previous work experience includes being a part of the Private Equity and M&A Team at Trilegal, Mumbai.
What is the basic jurisprudence behind the fresh matters in the court during this lockdown?
The matters during these times of lockdown majorly revolve around the problems caused due to this pandemic. Epidemic Diseases Act, 1897 is a statute which was passed by the Britishers long time ago to fight against this type of diseases while the Disaster Management Act is the statute which was formed by the Indian government post-independence. These statutes now have a major role to play. There are the problems ancillary to pandemic, the problems related to rent, jobs, loans, investment etc. This situation is an emergency but not an emergency as stated in the constitution. We are expecting the government instructions and dictums. In terms of our right to movement and other civil rights there has been a direct impact of this lockdown. These restrictions have now created the problem and now the forerunners of civil rights of the country and the likes of protestors at Shaheen Bagh, Jamia are being arrested during the lockdown. The prisoners are released from the jail due to Covid-19 and on the other hand. a particular section of people, like the protestors against CAA are being arrested during the lockdown and the major reasons for these arrests during this pandemic is to create a fear amongst the general public that if you don’t follow the orders of the government you will have to face the repercussions. So this creates a situation where there is a big question on our civil rights and mostly the fresh matters in the court are related or revolve around this cross-road of our constitution and constitutional rights.
What are major areas of litigation post-covid?
First area of litigation is the relation between the state and centre. Case filed by MP Mahua Mohitro before the SC which was asking that the CSR fund should get the Tax exemption. The SC said straightforwardly that this is not the right appellate authority and you should raise this issue in the Parliament as this is the subject of Legislation and not judiciary. This is changing the entire system of court and the principle of legal justice. This is another phenomenon popping up at the time of pandemic.
Second is the issue related to civil rights of the people, job guarantee, right to food and right to healthcare as this pandemic is not stopping other diseases and common people are facing a huge problem in getting treatment for the other severe diseases. In the recent AYUSHMAN Bharat case where first the centre said that everyone will be tested free of cost but now SC said that only those people who are enrolled will get free tests in private hospitals. So this is one of the examples where the rights are being impacted by the citizens of the country.
What are the urgent matters as per the Supreme Court?
Courts are saying that they will hear only urgent matters. These matters are whether the state can claim on public health and try to act and decide on the pandemic. In this situation, the regulations are not only to be adopted as per the regulations of our country and constitution but the policies and guidelines given by the world institutes like WHO are also to be followed as India is a member country of WHO and also has signed the agreement, it has the binding effect to follow the policies of WHO. But in the forming of the policies in this matter there were allegations against the West Bengal government that they were not following the guidelines of ICMR and admitting the Covid patients in Non-Covid hospitals and also they were surpassing or altering the data related to covid deaths.
It is very arbitrary as the identification of the urgent matter depends on the judge and when the party goes to SC or HC the petitioner has to convince the judge that it is urgent. There is no clear statement by SC on how to determine whether the matter is urgent or not, There cannot be any straight jacket formula to determine the same. and therefore it is on the judge’s wisdom to decide. For example the situation of anticipatory bail is always an urgent matter as it always carries a fear of getting arrested if the anticipatory bail is not granted.
What is going to be the rights of employees and employers?
On one hand the government is strict with the employers – if you don’t pay the salaries we will start legal proceedings against you and on the other hand, the government is not allowing the businesses to function normally. In normal circumstances the employee is having a feeling of security that if he is to be fired he will receive notice and the other rights as per labour laws but if the business gets bankrupt nothing can save the employees therefore the courts are also not giving the decisions which take the businesses towards bankruptcy. In notification during lockdown that no landlord can kick-out the tenant during the lockdown period and no employee should be entrenched during the lockdown period. The most adverse effect of this lockdown has fallen on the MSME sector of the country.
What can be done to bring the business out of distress?
Court is saying that for the time-being the employees should adjust in the pay-cuts and wait for the things to be changed and get better after the lifting of the lockdown. There has to be a moratorium for a time over the laws and the company laws, tribunals should be said to settle the matters of employee-employer relationship and try to get them in win-win situations. Save the jobs and also the company for the time being.
The government should come forward to form the guidelines in these times for dealing the matters of employer-employee, the tribunals and courts should apply them with spirit to lessen the effect of covid on the economy of our country and the jobs. The motive should be to let the company run in this time of emergency because if the company stops working then the people will lose the job and ultimately they will default the payments therefore to save the economy the jobs need to be saved first.
On what jurisprudence the court will rely on the case of not lifting lockdown?
The jurisprudence should be based on the constitution and the liberty of the people and the rights of the citizen should be protected. The decision should be as per rule of law and the interpretation of the international health regulations.
What are the top five decisions of various High Courts and Supreme Court during lockdown?
One of the very important and major decisions during the lockdown was the decision related to testing of Covid. The court held that everyone has the right to testing and no one will be denied to have the test for Covid.
The other important decision in these days is the Supreme Court’s decision of upholding the government circular on protection of jobs and salaries.
The judgment which is being very much criticized by everyone is the obligation of SARFAESI Act on the co-operative banks. The application of SARFAESI Act will lead to an adverse impact on the people as these banks are majorly created for the uplifting the poor and the working class. These banks provide a very small amount of sum as loan and they play a big role in the Indian economy. When the borrowers of these banks will be brought under SARFAESI Act it will affect the lower income class of the country very badly.
The court’s decision related to education policy is one of the major judgments in these times.
In the same time the court has also failed to address some very important matters and the court should take note of these serious issues like, PM Cares fund, CSR tax exemption, and they should actually go away with the concept of Locus Standi as it is very difficult for the aggrieved person to reach the court on himself personally.
Also there are matters filed by the lawyers that the Bar Council should provide some financial assistance to the lawyers, and should open a lawyer’s welfare fund.
If I am a sole bread earner in the family, can I stop paying the EMIs?
Some of the banks have automatically stopped it while the others have not and said that if you want to stop the EMIs then you have to contact the bank and stop it.
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